Judges Opinions, — October 5, 2022 9:48 — 0 Comments

Camela Cichocki, v. Old Dominion Freight Line, et al. In Re: 64 Vehicle Accident on Interstate 78 on February 13, 2016

Camela Cichocki, v. Old Dominion Freight Line, et al.

In Re: 64 Vehicle Accident on Interstate 78 on February 13, 2016

 

Civil Action-Law-Personal Injury-Motor Vehicle Accident-Permanent Injuries-Scope of Discovery-Subpoena-Medical Records-Physicians-Objection-Privacy Rights-Waiver-Protective Order

 

Camela Cichocki (“Plaintiff”) was an occupant of a vehicle involved in a sixty-four (64) vehicle accident on Interstate 78 that occurred during a snow squall.  Plaintiff filed a Complaint seeking damages for injuries sustained during that accident that she characterized as permanent in nature including a fractured nose, concussion and injuries to her right foot and left hip.  Plaintiff has objected to subpoenas issued by JP & Sons Trucking Corporation, Transcom Leasing Corporation, Omar Placencio-Correa and Jose Perez (“Defendants”) for medical records from her physicians on the basis that the same could result in the disclosure of personal non-relevant information.

 

  1. Pa.R.C.P. Rule 4003.1 authorizes discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action.

 

  1. The Pennsylvania Rules of Civil Procedure authorize liberal discovery regarding the subject matter of any pending case.

 

  1. A party objecting to discovery bears the burden of establishing that the requested information or documents are not relevant or discoverable.

 

  1. Pa.R.C.P. Rule 4009.1 permits a party to subpoena documents from an opposing party or a non-party.

 

  1. When a plaintiff alleges that he or she has suffered permanent injuries, the complete panoply of medical information regarding the plaintiff can be relevant to assess the life expectancy of the plaintiff.

 

  1. When a party places his or her physical condition at issue by filing suit, any privacy right against disclosure of private medical information usually is deemed to be waived.

 

  1. Pa.R.C.P. Rule 4011 provides that no discovery should be permitted that causes unreasonable annoyance, embarrassment, expense or oppression.

 

  1. Pa.R.C.P. Rule 4012(a) permits a litigant to request a protective order, which affords broad discretion to a trial court to create any order that justice requires to protect a person or party from unreasonable annoyance, embarrassment, oppression, burden or expense.

 

  1. In light of the explicit preference for liberal discovery in Pennsylvania, the fact that a plaintiff initiating an action for injuries waives confidentiality of medical information and a procedure exists to afford protection against nefarious disclosure of private information, the subpoenas upon Plaintiff’s medical providers are appropriate subject to Plaintiff’s ability to lodge a motion for protective order if appropriate.

 

L.C.C.C.P. Nos. 2021-01188 and 2018-00326, Opinion by Bradford H. Charles, Judge, January 10, 2022.

 

 

IN THE COURT OF COMMON PLEAS OF

LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

 

CAMELA CICHOCKI                                           :  NO. 2021-01188

         Plaintiff                                                     :

                                                                             :

  1. :

OLD DOMINION FREIGHT LINE, et al             :

          Defendants                                                :

 

 

In Re: 64 Vehicle Accident on                            :        No. 2018-00326

Interstate 78 on February 13, 2016           :

                                                                              

 

 

ORDER OF COURT

 

AND NOW, this 10th day of January, 2022, upon consideration of the objection of Plaintiff Camela Cichocki to the subpoena of her medical records by Defendants, and in accordance with the attached Opinion, the Order of this Court is as follows:

  1. The Plaintiff’s Objection to Subpoena is DENIED. Leave is granted for Defendants to subpoena medical records of Plaintiff as they have proposed.
  2. To the extent necessary, any existing discovery deadline will be deemed extended for a reasonable period of time to permit parties to immediately subpoena documents consistent with this Opinion.
  3. Leave is granted for Plaintiff to file a Motion for Protective Order in accordance with Pa.R.C.P. 4012 should Plaintiff identify specific private and sensitive information regarding her health history that should be excluded from the discovery or from dissemination outside the parameters of the above-referenced litigation.

 

BY THE COURT:

 

 

BRADFORD H. CHARLES

 

BHC/pmd

cc:     Court Administration

All counsel by email – Certificate of Service Attached

All Judges by email

Judge John Tylwalk

Stephanie Axarlis, Court Administrator

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF

LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

 

CAMELA CICHOCKI                                           :  NO. 2021-01188

         Plaintiff                                                     :

                                                                             :

  1.                              :

OLD DOMINION FREIGHT LINE, et al             :

          Defendants                                                :

 

 

In Re: 64 Vehicle Accident on                            :        No. 2018-00326

Interstate 78 on February 13, 2016           :

                                                                              

 

CERTIFICATION OF SERVICE

I certify that a true and correct copy of the above-referenced Order was sent via email to the persons listed below on the date indicated:

M. Lee Albright Esquire malbright@geico.com
Matthew Allen Esquire matthew.allen@courts.phila.gov
Jamie Anzalone Esquire Jamie.Anzalone@anzalonelaw.com
Zachary Ballard Esquire zballard@srstlaw.com
Stephen Baratta Judge NJones@Northamptoncounty.org
Michael Barrasse Judge mbarrasse@gmail.com
Jenna Mintzer Benton Esquire jbenton@defensecounsel.com
Mitchell Berger Esquire berger@ryanbrown.com
Seth Black Esquire sblack@summersmcdonnell.com
Joseph Bonfig Esquire jrbonfig@zarwin.com
Jessica Bowman Esquire jbowman@themayersfirm.com
Thomas Bracaglia Esquire tpbracaglia@mdwcg.com
Gary Brascetta Esquire GBrascetta@lowenthalabrams.com
Josh Brick Esquire Brick@LitchfieldCavo.com
Joseph Swist Esquire jswist@best-lawyers.com
Joanna Buchanico Esquire jdbuchanico@mdwcg.com
James Buck Esquire jbuck@moore4law.com
Patricia Burns Horn Esquire pattihorn@burnshorn.com
Cynthia Certo Esquire certo@ryanbrown.com
Ed Ciarimboli Esquire ejc@fclawpc.com
Samuel Cohen Esquire scohen@grossmcginley.com
Adrian Cousens Esquire acousens@grossmcginley.com
Kathleen Dapper Esquire kpdapper@burnswhite.com
Robert Dapper Esquire redapper@burnswhite.com
Bryson Datt, Jr. Esquire bfdatt@burnswhite.com
James DeCinti Esquire jdecinti@pionlaw.com
John Devlin Esquire jgd@devlinlaw.com
Dawn Doherty Esquire ddoherty@moodklaw.com
Donald Dorer Esquire dorerd@nationwide.com
George Eager Esquire geager@esqslaw.com
Kathleen Eager Esquire keager@esqslaw.com
Susan Engle Esquire sengle@defensecounsel.com
June Essis Esquire jessis@wglaw.com
Charles Fonzone Esquire cfonzone@grossmcginley.com
Kenneth Fromson Esquire kfromson@lawampm.com
Anthony Gabriel Esquire agabriel@margolisedelstein.com
Matthew Garson Esquire mgarson@lavin-law.com
Mark Giannotti Esquire Mgiannotti@moodklaw.com
John Giunta Esquire jgiunta@tthlaw.com
John Croumer Esquire jcroumer@postschell.com
E. Patrick Heffron Esquire pheffron@chartwelllaw.com
Gregory Heller Esquire gheller@best-lawyers.com
Karl Hildabrand Esquire khildabrand@laverylaw.com
John Hohenadel Esquire jphohenadel@n-hlaw.com
Eric Holmes Esquire Eholmes@meyner.com
Joseph Hudock, Jr. Esquire jhudock@summersmcdonnell.com
Bryon Kaster Esquire bkaster@dmclaw.com
Rolf Kroll Esquire rkroll@margolisedelstein.com
Daniel Leister Esquire Dan.leister@lewisbrisbois.com
Karl Longenbach Esquire karl.longenbach1@gmail.com
William Longo Esquire wlongo@margolisedelstein.com
David Lutz Esquire lutz@hhrlaw.com
Wade Manley Esquire wmanley@johnsonduffie.com
Joseph B. Mayers Esquire jmayers@themayersfirm.com
Joe McHale Esquire jmchale@travelers.com
Edward McKarski Esquire info@mckarski-law.com
Slade McLaughlin Esquire shm@best-lawyers.com
Claire Cookinham Esquire cmcookinham@burnswhite.com
Robert Munley III Esquire bobm@munley.com
Joseph Murphy Esquire murphy@bbs-law.com
Patrick Murphy Esquire pmurphy@bbclawfirm.com
Katie Nealon Esquire knealon@munley.com
Arnold New Judge Arnold.New@courts.phila.gov
Ben Novak Esquire bnovak@fhmslaw.com
Nicolas Ortiz Esquire nlo@wlbdeflaw.com
John Pion Esquire jpion@pionlaw.com
Darren Powell Esquire dpowell@johnsonduffie.com
Robert Prignoli Esquire prignoli@aol.com
Frank Procyk Esquire fprocyk@knafo.com
Joseph Pulcini Esquire jpulcini@tthlaw.com
Brett Riegel Esquire brett@armlawyers.com
Theodore Schaer Esquire tmschaer@zarwin.com
Timothy Schipske Esquire tschipske@srstlaw.com
Mark Schork Esquire mschork@best-lawyers.com
Edward Shaughnessy Esquire office@edshau.com
Matthew Siegel Esquire msiegel@cozen.com
Bryan J Smith Esquire bjs@dellmoser.com
Steven Snyder Esquire ssnyder@c-law.com
John Statler Esquire johnstatler@johnsonduffie.com
Joseph Swist Esquire JSwist@best-lawyers.com
Andrew VanWagner Esquire avanwagner@lundylaw.com
Thomas Vaughan Esquire tgvaughan@mdwcg.com
Andre Webb Esquire webba@ggmfirm.com

 

 

_____________, 2022                          By:_____________________________

Patricia M. Daubert, Office of the

Honorable Bradford H. Charles, J.

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF

LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

 

CAMELA CICHOCKI                                           :  NO. 2021-01188

         Plaintiff                                                     :

                                                                             :

  1. :

OLD DOMINION FREIGHT LINE, et al             :

          Defendants                                                :

 

 

In Re: 64 Vehicle Accident on                            :        No. 2018-00326

Interstate 78 on February 13, 2016           :

                                                                              

 

 

OPINION BY CHARLES, J., January 10, 2022

 

Should a lawyer be the gatekeeper of which medical records are or are not relevant in a personal injury case?  This question comes before us within the context of an objection by Plaintiff Camela Cichocki (hereafter “CICHOCKI”) to a subpoena issued by a defendant for her medical records.  Defendant JP & Sons Trucking Corporation, Transcom Leasing Corporation, Omar Placencio-Correa and Jose Perez (hereafter collectively “DEFENDANTS”) argue that they should have the ability to obtain records via a subpoena directly from CICHOCKI’s medical providers.  CICHOCKI responds that such process could result in the disclosure of personal, private, non-relevant information.  We issue this Opinion to address the parties’ interesting arguments.

 

  1. FACTS

This case is one of many that have been collectively referred to in Lebanon County as the “I-78 cases.”  All of these cases arise from a sixty-four (64) vehicle pile-up accident that occurred during a snow squall engulfing I-78 in northern Lebanon County on February 13, 2016.  Twenty-three (23) lawsuits were filed as a result of the pile-up accident.  Most of those lawsuits were coordinated in Lebanon County.  Some have since been resolved.

CICHOCKI initiated suit in Philadelphia County by filing a Writ of Summons on February 2, 2018.  A Rule was issued requiring CICHOCKI to file a Complaint on February 13, 2018.  Eventually, on June 22, 2018, a Civil Complaint was filed with the Philadelphia County Court.  Following Preliminary Objections, an Amended Complaint was filed on September 14, 2018.  Following additional Preliminary Objections, CICHOCKI filed a Second Amended Complaint on November 9, 2020.

The Second Amended Complaint alleged that CICHOCKI was an occupant of a vehicle that was forced to come to a stop on I-78 as a result of a vehicular pile-up created by a collision between vehicles driven by Leonid Samsonenko, Daniel Fantom and Joseph Jakubik.  (¶s 99-107 of Second Amended Complaint).  CICHOCKI also alleged that additional vehicles operated by Michael Kinnick and Shota Manvelidze also collided and exacerbated the pile-up of vehicles behind theirs.  CICHOCKI further  alleged that she was located in a stopped vehicle that was impacted by others involved in the pile-up. (¶ 107 of Second Amended Complaint).

CICHOCKI averred in her Complaint that she was rendered unconscious and had to be transported by emergency personnel to the Lancaster General Hospital.  According to CICHOCKI, she suffered injuries that she characterized as “permanent in nature”, including a fractured nose, concussion, injury to her right foot, injury to her left hip, “damage and loss of vision in left eye” and an “inability to walk normally without assistance.” (¶ 110 of Second Amended Complaint).  As a result of these injuries, CICHOCKI alleged that she suffered past and future medical expenses, wage loss, diminished quality of life, pain, suffering, loss of life’s pleasures, etc.

Discovery of all I-78 litigation was coordinated Lebanon County.  It progressed for several years, interrupted at times by the COVID-19 pandemic.  At some unknown time in mid-2021, DEFENDANTS issued subpoenas seeking to obtain CICHOCKI’s medical records directly from providers.  CICHOCKI’s attorney objected and pointed out that medical records had already been provided by his office to DEFENDANTS’ counsel.  When the dispute was referred to this Court, we issued an Order on October 21, 2021 to schedule a telephone conference in an effort to ascertain whether the dispute could be resolved.  We conducted that conference on October 28, 2021.  As a result of what was said, we ordered that briefs be filed by both parties.  Those briefs were filed in accordance with the Court’s directive.  We now issue this Opinion to address the question of whether DEFENDANTS should be permitted subpoena information directly from medical providers.

 

  1. CONTENTIONS OF THE PARTIES

The DEFENDANTS argue that use of subpoenas to obtain relevant information is a time-honored method by which litigants can obtain needed information.  Without casting aspersions against CICHOCKI’s counsel in this case, the defense suggests that preventing the use of medical records subpoenas would effectively place plaintiffs’ attorneys in charge of what should or should not be disclosed.  Defense counsel points out that if a plaintiffs’ lawyer withholds documentation based upon privacy grounds, the defense might never even have knowledge of what was withheld or why.  DEFENDANTS also point out that the Plaintiff in this case has not submitted any specific argument about privilege or privacy.  Because of this, the defense argues that the Court should err in favor of discovery disclosure and defer issues of trial relevance until a later time.

CICHOCKI argues that discovery is always subject to the Rules of Ethics governing conduct of lawyers.  Pursuant to these Rules of Ethics, attorneys routinely undertake a triage review of discovery documents before they are disclosed.  If something is deemed privileged, a log is created so that the parties can argue the issue to a court at a later date.  According to CICHOCKI’s counsel, private and sensitive information irrelevant to a lawsuit can exist in medical records and it should be the role of plaintiff’s counsel to triage these records in order to protect their clients’ right of privacy.

 

III.    LEGAL PRINCIPLES

The Pennsylvania Rules of Civil Procedure authorize liberal discovery regarding the subject matter of any pending case.  Pa.R.C.P. 4003.1 authorizes discovery “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action…” The Rule further states:

“It is not grounds for objection that the information sought will be inadmissible at the trial if the information sought appears reasonable calculated to lead to the discovery of admissible evidence.”

Pa.R.C.P. 4003.1(b)

 

Pennsylvania’s highest Court has characterized our discovery rules as encompassing “Pennsylvania’s long history of liberal discovery to prevent unfair surprise at trial.”  Barrick v. Holy Spirit Hospital, 91 A. 3d 680, 683 (Pa. 2014).

Courts adjudicating discovery disputes have consistently held that a party objecting to the discovery bears the burden of establishing that the requested information or documents are not relevant or discoverable.  Reusswig v. Erie Insurance, 49 Pa.D&C 4th 338 (Monroe Co. 2000); Winck v. Daley Mack Sales Inc., 21 Pa.D&C 3rd 399 (Somerset Co. 1980); Tataren v. Little, 2 Pa.D&C 3rd 651 (Phila. Co. 1977).  Moreover, “Any limitations or restrictions upon discovery should be construed narrowly.” Yadouga v. Cruciani, 66 Pa.D&C 4th 164 (Lacka. Co. 2004).

While litigants’ right to discovery is unquestionably liberal, as between the parties themselves, that right does not automatically confer upon a litigant the ability to publicly disclose what has been learned during the litigation process.  In Mark West Liberty Midstream and Resources LLC v. Clean Air Counsel, 71 A.3d 337 (Pa. Cmwlth. 2013), Pennsylvania’s Commonwealth Court stated:

“Discovery is an open process among the parties to litigation, but it is not an open process between the parties to litigation and the public.  Liberal discovery is allowed for the purpose of preparing a litigant’s case, and a litigant has no right to disseminate private documents gained through the discovery process…Discovery materials not filed with the court or an agency or used in a litigant’s case are not “public”.”

Id at footnote 15.

 

          Pennsylvania’s Rules of Civil Procedure permit a party to subpoena documents from both an opposing party or a non-party.  Pa.R.C.P. 4009.1 states:

“Any party may serve a request upon a party pursuant to Rules 4009.11 and 4009.12 or a subpoena upon a person not a party pursuant to Rules 4009.21 through 4009.27 to produce and permit the requesting party…to inspect and copy any designated documents…which constitute or contain matters within the scope of Rules 4003.1 through 4003.6 inclusive and which are in the possession, custody or control of the party or person upon whom the request or subpoena is served…”

 

In a personal injury context, medical records are almost always relevant.  When, as here, the plaintiff alleges that he/she has suffered permanent injuries, the complete panoply of medical information regarding a patient can be relevant to assess the life expectancy of the plaintiff.  After all, the value of “permanent harm” for an individual with a five-year life expectancy will of necessity be different than the value of “permanent harm” suffered by somebody with a life expectancy of fifty years.  See, e.g. 4 West’s Pennsylvania Practice §12.20 (Impact of plaintiff’s life expectancy).  Because the jury as fact-finder must make its own determination regarding the Plaintiff’s life expectancy, information regarding the Plaintiff’s health, manner of living, personal habits and all other factors that could affect the duration of his life all become relevant areas of inquiry.  See, Pauza v. Lehigh Valley Coal Company, 231 Pa. 577 (1911); Binder v. Jones & Laughlin Steel Corp., 520 A.2d 863 (1987); Kraus v. Taylor, 710 A.2d 1142 (Pa. Super. 1998).

Because it would be impossible for the parties to address issues such as the severity of injuries and life expectancy without access to medical records, the law provides that injured plaintiffs relinquish their right to assert the physician-patient privilege against disclosure of information.  See, 42 Pa.C.S.A. §5929; in re: June 1979 Allegheny County Investigating Grand Jury, 415 A.2d 73, 77 (Pa. 1980).  Our Commonwealth’s highest Court has stated: “Where a party brings a personal injury action against another, information about his medical condition upon where he relies for recovery of damages is relevant and material.”  Myers v. Travelers Insurance Company, 46 A.2d 224 (Pa. 1946).  In addition, the Supreme Court of this Commonwealth has stated “By making a claim for personal injuries, an individual must expect reasonable inquiry and investigation to be made upon the claim, and to that extent, the individual’s privacy interest is constrained.” Forster v. Manchester, 189 A.2d 147 (Pa. 1963).  Stated differently, when a party places his or her physical condition at issue by filing suit, any privacy right against disclosure of private medical information is usually deemed to be waived.  Moses v. McWilliams, 549 A.2d 950 (Pa. Super. 1988).

Of course, no discovery should be permitted which “causes unreasonable annoyance, embarrassment, expense or oppression…”. Pa.R.C.P. 4011.  That being said, every litigant should expect that “almost any discovery request causes some annoyance, embarrassment, oppression, burden or expense.” D.S. v. DePaul Institute, 32 Pa. D&C 4th 328, 334 (Allegheny Co. 1996).

As it relates to subpoenas for medical documentation, the Monroe County Court of Common Pleas addressed an argument proffered by a defendant that the subpoenaed documentation sought duplicative records and such a process was, by definition, “overly broad and burdensome”.  Via its Opinion in Miller v. Grunfelder, 32 Pa.D&C 5th 358 (Monroe Co. 2013), the Court rejected this argument and stated:

“Subpoenas for the same information are not overly broad and burdensome, and are readily available to be produced…

 

We are cognizant of defendants’ argument that the request may be duplicative of discovery already provided.  However, the nature of litigation and discovery today has bred an unfortunate mistrust and gamesmanship among counsel.  Even if only one discovery abuse or even an innocent mistake has occurred in the past where all documents were not provided in some case, counsel will invariably want to exhaust all avenues in all of their cases to ensure they are adequately prepared.  It is no different than a plaintiff providing all medical and employment records and information in their possession through discovery, and defense counsel sending subpoenas to medical providers and employers for much of the same records.  It is unfortunate that the state of litigation has evolved into this, but there is nothing in the Rules of Civil Procedure that prohibit such a practice.”

 

Pennsylvania has also created a method by which so-called “discovery abuse” can be reined in.  Pa.R.C.P. 4012 permits a litigant to request a “Protective Order”.  This Rule affords broad discretion for a trial court to create “any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense…” Pa.R.C.P. 4012(a).  Specifically encompassed within the Protective Order Rule is the ability of a court to limit inquiry (Rule 4012(1)(4) and (5)), the ability of a court to limit access to information (Rule 4012(a)(6) and (7)), and the ability of a court to require that information be disclosed under seal or only in a specifically designated manner (Rule 4012(a)(8) and (9)).

 

 

  1. ANALYSIS

The arguments proffered by both the plaintiff and the defense have resonated with this Court.  Time and again, we have encountered situations where counsel has disclosed damning documentation possessed by their clients for one simple reason – the documents are relevant and counsel recognizes them as such.  As a general rule, we respect the ethical integrity of the attorneys who appear before us.  In the overwhelming majority of situations, we have utmost confidence that counsel will adhere to the rules requiring liberal discovery and they will notify opposing counsel if something is being withheld that could be disputed.  As it relates to medical records, we understand CICHOCKI’s desire to conduct a triage of sorts.  Disclosure of irrelevant and potentially embarrassing information could, by itself, serve as a disincentive for a plaintiff to proceed with litigation.[1]

On the other hand, ceding total control over the discovery process to counsel could incentivize gamesmanship driven by self-interest.  We have routinely observed how their perceptions of parties and counsel can be impacted by the perspectives.  When a contingent-fee reliant plaintiffs’ counsel is faced with a choice of withholding documentation based on “privacy grounds” that could later lead to disclosure of more relevant information, the temptation for that attorney to withhold the document could become overwhelming.  And that is especially true if the client insists that the documentation be withheld as “private” and “having nothing to do with this case.”

So where do we land given that the arguments of both sides have resonated?  Like any pilot searching for an appropriate runway, we will first ascertain the rules governing our approach.  Then we will ascertain if or how potential dangers of our chosen runway could affect our landing.  In the parlance of the decision now before us, the two questions we must ask are: (1) Which decision is more consistent with the Rules governing discovery? and (2) What dangers accompany our available options and how can they best be navigated?  We will briefly address each of these two questions below:

 

  • Which decision is most consistent with the Rules governing discovery?

 

To the extent that civil litigation can be considered a “test”, Pennsylvania requires that it be an open book one.  To this end, civil discovery is to be “liberally allowed…” George v. Schirra, 814 A.2d 202, 205 (Pa. Super. 2002).  The purpose of Pennsylvania’s liberal discovery rules “is to prevent surprise and unfairness and to allow a fair trial on the merits.”  Dominick v. Hanson, 753 A.2d 824, 826 (Pa. Super. 2000).  See also, Virnelson v. Johnson Matthey Inc., 253 A.3d 707 (Pa. Super. 2021).

Pennsylvania’s explicit preference for liberal discovery clearly favors the Defendants in this case.  Our survey of Pennsylvania law reveals that in almost every context within which discovery disputes have arisen, courts have erred on the side of more rather than less disclosure.  As it relates to this case, erring on the side of disclosure would permit the defense to obtain all of the Plaintiff’s medical records record the subpoena process.

 

  • Dangers accompanying each potential option

If we were to rule in favor of the Plaintiff, the risk attendant to such decision is that information that is relevant or could lead to the discovery of relevant information could be withheld.  Under such a scenario, a jury could be prevented from possessing information that could be deemed helpful.  In such a scenario, the defense may not even have knowledge about what was withheld or why, and that would prevent meaningful court intervention to address disputes.

If we were to rule in favor of the defense, the risk is that potentially private and sensitive information irrelevant to the dispute could be placed in the hands of an opposing litigant who may have an incentive to use that information to embarrass or gain leverage over the party whose records have been subpoenaed.  While we cannot discount the possibility that such a scenario would be embarrassing, neither can we forget that when a plaintiff initiates a lawsuit for injuries, he/she waives confidentiality of medical information.  Likewise, we cannot ignore the fact that when permanent injuries are alleged, almost all of a patient’s medical history would be relevant to determining that patient’s reasonable life expectancy; life expectancy is relevant when permanent harm is alleged because a jury has to define the duration of the plaintiff’s future harm.

Just as important, procedures exist under the Pennsylvania Rules of Discovery that afford protection against nefarious disclosure of private information.  As noted above, Pa.R.C.P. 4012 permits litigants to request a “Protective Order”.  Courts are then afforded broad discretion to issues orders to limit disclosure of sensitive information and/or prevent its undue dissemination.  Thus, if a plaintiff has knowledge – either prior to or after disclosure – that subpoenaed documentation contains sensitive irrelevant, embarrassing and private information, that plaintiff can request a Protective Order.  After affording notice and an opportunity to be heard, to all parties, the Court could then issue orders as necessary or appropriate under the circumstances.

We conclude based upon everything that the harm that Plaintiff seeks to prevent by her objection to subpoena can be remedied by the filing of appropriate motions with the Court.  Unlike the potential for silent mischief to occur through non-disclosure of unknown but potentially relevant information, the risks attendant to disclosure of subpoenaed private information is capable of being addressed using the appropriate Rules of Civil Procedure.

 

  1. CONCLUSION

In the end, we have concluded that the Pennsylvania Rules of Civil Procedure governing discovery prefer liberal disclosure of information.  We have also concluded that the potential harm feared by Plaintiff if medical records subpoenas are permitted is in reality easily mitigated and/or remediated.[2]  Because of these two overriding considerations, we will err on the side of allowing the defense to subpoena medical records directly from Plaintiff’s medical providers.  Of course, if embarrassing and private information is revealed, the Plaintiff will have the ability to request protective relief via a Motion for Protective Order.  An Order to effectuate these decisions will be entered today’s date.

 

 

[1] Knowledge of embarrassing information could also afford an opposing party with leverage during settlement negotiations.

[2] If Plaintiff perceives that specific medical information should be excluded from disclosure, a Motion for Protective Order can be filed in advance of disclosure.  The Motion for Protective Order can be filed under seal to prevent the allegedly private and sensitive information from becoming a part of the Court’s public record.  However, it will be necessary for opposing counsel to receive a copy of the Motion for Protective Order in order for opposing counsel to be able to meaningfully respond to the request for protection.

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